A question that has often been asked on this site and the numerous other articles we have written over the years on all things E-3 visa, is whether it is possible to found a company or be self employed under this visa category?

The general answer we have given over the years in an ‘uncertain no’ or more aptly a ‘with great difficulty’. The main reason we have said this is that the law, like that for its H-1B visa counterpart, is written with professional employment in mind. So while no explicitly denying the ability to found a company or self employment, terms that would imply an employer-employee relationship and requirements around the soundness of the employing company’s operational history make things more challenging.

In practice this is what has played out with the majority of anecdotal stories from people showing them being denied when trying or having to jump through so many hoops to make it happen, they have given up and pursued the employee path.

Now in more recent years it seems like some have found a way to make it work. Particularly in the technology sector and with Australian companies like Atlassian recently going public on the New York Stock Exchange, the ability for the enterprising Australian entrepreneur combined with the US consular and USCIS interpretation of the law has meant some have succeeded. That said it is not easy but here is some of the major items that anyone would have to take care of if they want a chance of making it work.

1. A US incorporated entity needs to be setup and ideally with either/or; 1 year of operating history, legitimate and credentialed US based board of directors, ownership or management, be well funded and have a US office address and phone number. This could be a LLC or C-Corp but the general recommendation would be a C-Corp (equivalent to a Pty. Ltd. or private company setup in Australia)

2. That the company has all the official registration numbers like FEIN to ensure it is tax compliant and other registrations relevant to its area of operations

3. If you are the (sole or one of few) employees, even if the CEO, that a clear process is evident for you to be able to be terminated which is why the US based ownership or board of directors becomes critical.

It is important to note if you trying to transfer operations from an existing Australian entity or business to be aware of the tax implications as well as the likely relatively little regard that business history will matter given we are talking about small companies and revenues.

Despite contrary opinion you can leave your job when you are on a H-1B visa or E-3 visa, it is however a difficult route especially if you are not aware of the immigration rules that govern leaving and changing employers.

As it stands now the rules are very strict when leaving an employer and remaining on the same visa. Specifically that you can be no longer than 10 days without an employer. This can be a little bit of a grey area as sometimes in the case of either being laid off as a foreigner or naturally leaving your job, the last portion of your official time at a company may actually be PTO (paid time off or vacation) or some form of long term official sanctioned leave that may be paid or unpaid. So in any of these cases it should still be the case that the 10 day countdown only begins once your employed connection with the company ceases. This differs from so called severance pay which may be paid in lump sum or increments but would at or after your final official date of employment and thus doesn’t impact the 10 day countdown.

The four most common reasons for leaving your US employer while on a non-immigrant visa is;

1. To return to your home country or other non US destination2. To change employers within the US3. A forced change to leave US employer either via lay-off, termination/firing or leaving due to bad circumstances4. Change to another visa like the F-1 visa for studying or being eligible for a Green Card allowing flexibility of employment

Leaving the US
If you are leaving your job and planning to leave the US the biggest things to note are ensuring you continue to file a tax return with the IRS the following year and any other year you are earning US income. Additionally ensuring you don’t have any other outstanding debt owing is also ideal especially if you plan to return to the US or in the future want to achieve a status like Permanent Residency and US Citizenship.

Changing Employers
We have written extensively on the issues, process and timing of changing employers on either your H-1B visa or E-3 visa and the differences between the two statuses. The biggest thing to note is the concept of Portability and the fact that it explicitly is stated and applies in the case of the H-1B visa and allows someone to commence employment at a new employer even if the new petition is not approved and is just being processed. In the case of the E-3 visa, some people have received advice that the same process applies for the E-3 visa, however it is not a written statute so many people leave the country to get a new E-3 visa as a quicker route than the approval process of changing employers within the US.

Forced Departure From Employer
If you are laid off from your employer, there is no special rules that the US employer must follow for you as a foreigner so other than paying you severance at their discretion, extending your official final date and/or helping you in your job search, the 10 day rule still applies from your final date. However if they do lay you off, they are obligated to pay for your return trip to your home country and do it for a trip that does not violate your visa status rules. If you are terminated with or without cause it becomes a grey area as to whether they are obligated to pay this return fare, however they really should. Ultimately if you are terminated without cause or have been forced to leave b/c of unlawful work conditions, the US workplace rules still apply to you as a foreigner and you can report your employer company and specific people to the Department of Labor and USCIS. However unless it is a criminal case this won’t in and of itself help your ongoing visa status.

Changing Visa or US StatusIf you are changing to a status whereby you are studying in the US or achieving a Green Card either via the Diversity Visa Lottery, the employer sponsored EB-1, EB-2 or EB-3 permanent visas or by marrying a US Citizen or Permanent Resident, then you are bound by the new terms of that status as you have that approval. Therefore you can’t operate under the new terms of that visa or permanent residency until you receive approval to do so. There are various change of status forms and process and tasks that apply in each case including things like the I-129 form, I-485 form, medical visits, etc. depending on what you are changing too.

The proposed US Immigration Reform of 2013 proposes to change a lot of these things at least for the H-1B visa by increasing the time to change to 60 days and increasing the number of available Green Cards and pathway to them. However ultimately regardless of the passage of that bill which is still tenuous as of this writing, it is important for all foreigners working in the US to understand the implications of leaving your employer.